Federal Court of Australia
Australian Building and Construction Commissioner v Ingham [2020] FCA 1632
ORDERS
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant | ||
AND: | First Respondent SHAUN DESMOND Second Respondent CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Third Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The proceeding is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[11] | |
[11] | |
[19] | |
[24] | |
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[47] | |
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[90] | |
Consideration of alleged contraventions of s 46 of the BCI Act | [105] |
Consideration of alleged contraventions of s 348 of the FW Act | [178] |
[207] |
RANGIAH J:
1 In these proceedings, the applicant, the Australian Building and Construction Commissioner (the Commissioner), alleges that the respondents contravened s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCI Act) and s 348 of the Fair Work Act 2009 (Cth) (the FW Act).
2 The first respondent is Jade Ingham, an Assistant State Secretary of the Construction, Forestry, Maritime, Mining and Energy Union (the Union). The second respondent is Shaun Desmond, who is employed by the Union as an organiser. The third respondent is the Union itself.
3 MPG Constructions Queensland Pty Ltd (MPG) was the principal contractor in respect of the construction of a high-rise residential building known as “Qube” at Broadbeach in Queensland. On 16 October 2017, there was a verbal altercation between Benjamin Kohleis, an employee of MPG, and Christopher Stephen, the site delegate for the Union. As a result, MPG asked Mr Stephen not to return to the site until the incident had been investigated.
4 On the morning of 17 October 2017, Mr Desmond met with workers who were members of the Union at the site. The workers refused to perform any work until Mr Stephen was reinstated.
5 On the morning of 18 October 2017, Mr Desmond and Mr Ingham met with workers at the site. The workers again refused to perform any work until Mr Stephen was reinstated.
6 On 19 October 2017, Mr Desmond again met with workers at the site. The workers did not commence work at the usual starting time of 6.30 am, but returned to work at about 11.30 am, after MPG indicated that Mr Stephen would be reinstated.
7 The Commissioner alleges that the respondents organised “unlawful industrial action” on 17, 18 and 19 October 2017 in contravention of s 46 of the BCI Act. The Commissioner alleges, in the alternative, that the respondents were knowingly concerned in contraventions by the workers of s 46.
8 The Commissioner also alleges that the respondents organised “industrial action” against MPG with intent to coerce MPG into reinstating Mr Stephen, in contravention of s 348 of the FW Act.
9 It is not in dispute that the workers refused to perform work on 17 and 18 and part of 19 October 2017 in order to pressure MPG into permitting Mr Stephen to return to the site. However, the respondents defend the allegations on the basis that, firstly, the workers’ refusal to work was not “industrial action” within s 7 of the BCI Act. The basis of this argument is that it was raining on 17 and 18 and part of 19 October 2017 and, under the provisions of the Building and Construction General On-site Award 2010 (the Award) and the custom and practice at the site, the workers were entitled to not work during inclement weather. The respondents contend, secondly, that the workers’ refusal to work was not organised by the respondents.
10 I propose to commence by describing the relevant provisions of the legislation and the Award. I will then consider the evidence, before considering the parties’ submissions.
11 Section 46 of the BCI Act provides:
46 Unlawful industrial action prohibited
A person must not organise or engage in unlawful industrial action.
12 Under s 5 of the BCI Act, action is “unlawful industrial action” if the action is “industrial action” and is not “protected industrial action”.
13 The term, “industrial action” is defined in s 7 of the BCI Act as follows:
7 Meaning of industrial action
(1) Industrial action is action of any of the following kinds:
(a) the performance of building work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to building work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of building work by an employee or on the acceptance of or offering for building work by an employee;
(c) a failure or refusal:
(i) by employees to attend work, where that work is building work; or
(ii) to perform any building work at all by employees who attend work, where that work is building work;
(d) the lockout of employees from their work by their employer, where that work is building work.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to, in advance and in writing, by the employer of the employees;
(b) action by an employer that is authorised or agreed to, in advance and in writing, by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
…
14 Section 6(1) of the BCI Act defines “building work” to mean, relevantly, the construction of structures that form, or are to form, part of land, and any operation that is part of, or preparatory to, such work. It is not in dispute that the work done, or refused to be done, by workers at the Qube project was “building work”.
15 Section 92 of the BCI Act provides, relevantly:
92 Ancillary contravention of civil remedy provisions
(1) A person must not:
…
(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil remedy provision; or
…
Civil penalty
(2) A person who contravenes subsection (1) in relation to a civil remedy provision is taken to have contravened the provision.
16 Section 94(1) of the BCI Act provides, relevantly:
94 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
…
is taken, for the purposes of this Act, to have been engaged in also by the body.
17 Section 95(1) of the BCI Act provides, relevantly:
95 Actions of building associations
(1) For the purposes of this Act, each of the following is taken to be action of a building association:
…
(b) action taken by an officer or agent of the building association acting in that capacity;
…
18 The respondents admit that the Union is a “building association” within the meaning of that expression in s 5 of the BCI Act and that Mr Desmond and Mr Ingham are “officers” of the Union.
19 Section 348 of the FW Act provides:
348 Coercion
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.
Note: This section is a civil remedy provision (see Part 4-1).
20 Section 347(b)(iv) of the FW Act provides, relevantly, that:
A person engages in industrial activity if the person…does, or does not…comply with a lawful request made by, or requirement of, an industrial association.
21 Section 360 of the FW Act provides:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
22 Section 361 of the FW Act provides:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
23 Section 793 of the FW Act provides, relevantly:
793 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
…
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
…
24 Section 140 of the Evidence Act 1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
25 The Commissioner accepts that he bears the onus of proving the allegations he has made, and must do so on the balance of probabilities. The matters to be taken into account in deciding whether the case has been proved include the gravity of the allegations, particularly that s 46 of the BCI Act is a “Grade A civil remedy provision”, and that s 348 of the FW Act is a “civil remedy provision”. Contravention of these provisions exposes the respondents to the imposition of pecuniary penalties under ss 81(1) and (2) of the BCI Act and s 546 of the FW Act respectively.
26 Clause 23 of the Award provides, relevantly:
23. Inclement weather
23.1 This clause applies to general building and construction and the civil construction sector only.
23.2 Inclement weather means the existence of rain or abnormal climatic conditions (whether hail, extreme cold, high wind, severe dust storm, extreme high temperature or the like or any combination of these conditions) where it is not reasonable or it is unsafe for employees to continue working in those conditions.
…
23.5 When inclement weather conditions exist an affected employee is not required to commence or continue to work where it is unreasonable or unsafe to do so. In cases where emergency work is required or it is necessary to complete a concrete pour already commenced to a practical stage, work may occur or continue provided that such work does not give rise to a reasonable concern on the part of an employee undertaking the work of an imminent risk to their health or safety.
…
23.13 Additional wet weather procedure
(a) Remaining on site
Where, because of wet weather, the employees are prevented from working:
(i) for more than an accumulated total of four hours of ordinary time in any one day; or
(ii) after the meal break, as provided in clause 35.1, for more than an accumulated total of 50% of the normal afternoon work time; or
(iii) during the final two hours of the normal work day for more than an accumulated total of one hour;
the employer will not be entitled to require the employees to remain on site beyond the expiration of any of the above circumstances.
...
(b) Rain at starting time
Where the employees are in the sheds, because they have been rained off, or because it is at starting time, morning tea, or lunch time, and it is raining, they will not be required to go to work in a dry area or to be transferred to another site unless:
(i) the rain stops; or
(ii) a covered walkway has been provided; or
(iii) the sheds are under cover and the employees can get to the dry area without going through the rain; or
(iv) adequate protection is provided.
Protection must, where necessary, be provided for the employees’ tools.
27 There were nine witnesses called to give evidence by the Commissioner and three witnesses called by the respondents. The factual matters principally in dispute are:
(1) whether the extent of the rainfall meant that the workers were entitled under the Award to refuse to perform work on 17, 18 and the morning of 19 October 2017;
(2) whether Mr Desmond and Mr Ingham organised the workers to decide to refuse to perform work.
28 I will discuss the matters not in dispute, before examining the more controversial evidence.
The site and the Safety Committee
29 The Qube project was a high-rise apartment building consisting of 40 levels. At the peak of the project in early 2018, there were about 160 workers working on the project. Of those workers, approximately 100 were members of the Union. These workers included scaffolders, crane operators, dogmen, gyprock workers, steel fixers, carpenters, water proofers, plasterers and painters. The workers appear to have been a mixture of employees of subcontractors and labour hire companies. It is not clear whether any of the workers (other than management employees) were employed directly by MPG.
30 The Qube project site was located at 2–4 Jubilee Avenue at Broadbeach. The site office and the “smoko shed” for the employees were located away from, but close to, the construction site, at 8 Jubilee Avenue.
31 Work for the Union’s members would generally commence at 6.30 am. The workers would arrive at the smoko shed and leave their gear there before proceeding to the site. They also took their breaks in the smoko shed. There was no covered walkway between the smoko shed and the construction site.
32 There was a Safety Committee established under “Site Safety Rules” promulgated by MPG. On the Safety Committee, there were representatives of various subcontractors and trades, as well as a Union representative, Mr Stephen. These members were known as Health and Safety Representatives, or “HSRs”. Mr Kohleis, as a representative of MPG, chaired the Safety Committee. Mr Kohleis was employed by MPG as a health and safety advisor. The legal status and role of the Safety Committee has not been made clear. I infer that it was part of a safety plan made under workplace health and safety legislation.
33 Each Wednesday morning, the Safety Committee would conduct a safety walk through the construction site. The purpose of the walk was to identify and manage any safety issues.
34 In addition to the weekly safety walks, the Safety Committee would conduct “wet weather walks” (also known as “inclement weather walks”) when necessary. The purpose of wet weather walks was to identify areas that needed “dewatering” following rainfall. The process of dewatering involved removing water using brooms, squeegees or other equipment. The presence of water could create safety risks, such as slips and falls and in the placement of electrical cords.
35 There is in evidence a document prepared by MPG in use during the Qube project entitled, “Wet Weather Back to Work Procedure”. It describes what is meant by “dewatering” and the key risks involved. Under the heading “Responsibilities”, the document states, “Safety Committee responsible to inspect site following heavy rain”, and “Safety committee to open areas progressively once dewatered”.
36 If there had been overnight rain at the site, the Safety Committee would conduct a wet weather walk in the morning before work commenced. Whether the Safety Committee decided that a wet weather walk was required after rainfall during working hours would depend upon the extent of the downpour.
37 A wet weather walk would not start until the rain had stopped. This appears to have been for two reasons. First, because there was no point in dewatering areas while the rain was continuing to add water, and, second, because under the Award, the workers were not required to work or walk to the site (in the absence of a covered walkway) while it was raining.
38 If rain started while an employee was working in the open, there was no hard and fast rule about the amount of rain that was required before workers would stop working, but common sense was applied.
39 After conducting a wet weather walk, the Safety Committee would decide whether it was safe to resume work. Mr Kohleis states that when the Safety Committee decided it was safe to open the site, the decision was communicated verbally or through SMS messages.
40 There is an area of difference between the evidence of Mr Stephen and Mr Kohleis as to whether the whole of the Safety Committee was required to participate in a wet weather walk before a decision could be made that work could recommence. Mr Stephen’s evidence was that all the HSRs needed to be present during wet weather walks because, with their varying backgrounds, they could identify all the hazards or risks. Mr Stephen acknowledged that it was sometimes impossible to get all members of the Safety Committee to attend all safety walks, but stated that the usual practice was to have another HSR who was on-site attend the walk in their place. Mr Kohleis’ evidence was that, while ideally the whole of the Safety Committee would attend wet weather walks, there was no requirement for attendance by all its members. He gave the example that some trades are never rain affected, so there was no expectation for them to be present. Mr Kohleis states that a wet weather walk was convened by sending an SMS or verbally notifying the HSRs, and the walk would proceed with whomever attended.
41 There is no documented procedure in evidence concerning the conduct of wet weather walks. I prefer Mr Kohleis’ evidence that there was no requirement that all the members of the Safety Committee attend the walks in order for the site to be cleared for the resumption of work. The evidence of James Morris, a director of MPG, and Nicholas Xenitopoulos, MPG’s construction manager, was consistent with Mr Kohleis’ evidence. As Mr Kohleis pointed out, there would be no need for HSRs in trades that were not affected by wet weather to attend. In addition, there are likely to have been times when not all the members of the Safety Committee were on-site, and it would have been impracticable to have to wait until all members were present or to find replacements for them. I am not satisfied that it was an invariable practice for members of the Safety Committee to be replaced by other HSRs. I find that the practice was for a walk to be conducted by whichever members of the Safety Committee (or replacement HSRs) turned up after notification that a walk was to be conducted.
42 It had rained during the night of Sunday, 15 October 2017. Mr Kohleis decided that a wet weather walk was required before work could resume on Monday, 16 October 2017, and he notified the members of the Safety Committee.
43 While the wet weather walk was being conducted by the Safety Committee, Mr Kohleis left in order to attend to another task. A dispute later arose between Mr Stephen and Mr Kohleis. Mr Stephen claimed that Mr Kohleis had authorised resumption of work before the Safety Committee had completed the walk. There was a verbal confrontation between them. Mr Kohleis informed MPG’s managers by email that Mr Stephen had, “called me a few names and called me out to the street to short [sic] this out”.
44 It is unnecessary for the Court to decide what was said between Mr Stephen and Mr Kohleis or who was at fault. What is relevant is that Mr Xenitopoulos decided to conduct an investigation into Mr Stephen’s conduct. Either Mr Xenitopoulos or John Curtis, MPG’s project manager, sent a text message to Mr Stephen asking him not to attend the site the next day while the investigation was being carried out. This seems to have been interpreted by Mr Stephen as an instruction not to attend the site, not only on 17 October 2017, but until the investigation was completed.
45 On the afternoon of 16 October 2017, Mr Stephen informed Mr Desmond by telephone that he had been asked not to return to work the next day until an investigation was conducted. Mr Desmond states that not long after that call ended, he received a call from a worker, whose name he cannot recall. Mr Desmond says he was told that workers did not want to be on-site without Mr Stephen and that they would not be working until he was reinstated, and that they had no confidence in Mr Kohleis. Mr Desmond says he told the worker that he would attend the site in the morning and try to sort it out.
46 Mr Desmond then called Mr Xenitopoulos and asked him what was going on. Mr Desmond gave evidence that he said, “I will be there in the morning to talk to you about it and try and sort it out, but if one goes then the other one has to go”. Mr Desmond states that this reflected his view that if there was an altercation at work, all employees involved should be stood down.
47 Mr Desmond met with Mr Stephen outside the Qube project site the next morning, 17 October 2017, just before starting time, and they walked together to the smoko shed. Mr Stephen deposes that there was a meeting of the workers, although he was not actively involved. He recalls that, at some stage, a vote of no confidence in Mr Kohleis was proposed by one of the workers and there was a show of hands. He does not remember Mr Desmond saying anything in response to that. He does not recall any vote about returning to work. Mr Stephen went with Mr Desmond to meet Mr Xenitopoulos, and Mr Desmond explained the frustrations the members had voiced in the meeting.
48 Mr Desmond states that on 17 October 2017, there was a meeting in the smoko shed and a number of workers wanted to have a vote of no confidence in Mr Kohleis. He says the workers also told him that they did not want to return to work until Mr Stephen was reinstated because they had no confidence that Mr Kohleis would keep them safe on-site. Mr Desmond says that it was apparent to him that this had been decided prior to him arriving at the site. He says he formed this view based on what was said at the meeting and his conversation with the worker on the previous day.
49 Mr Desmond states that he did not want the workers to have a vote of no confidence because that would mean that somebody’s job would be on the line. He told the workers that he would speak with Mr Xenitopoulos to try to sort it out. The workers remained in the smoko shed.
50 Mr Desmond says that he told Mr Xenitopoulos that the workers were not happy about Mr Stephen being stood down while Mr Kohleis was still there and they wanted to put a vote of no confidence up and wanted Mr Stephen to be allowed back. Mr Xenitopoulos said that that was not going to happen. Mr Desmond said that the workers would go back to work if Mr Stephen was allowed to go back to work, and would also go back to work if Mr Kohleis was sent home too. Mr Desmond says that Mr Xenitopoulos replied, “It’s not happening. But we might be able to justify today because it is raining”.
51 Mr Xenitopoulos’ version of the discussion is that Mr Desmond said words to the effect that his men would be sitting in the sheds until Mr Stephen was reinstated and that there had been a vote of no confidence in Mr Kohleis. Mr Xenitopoulos told Mr Desmond that the workers were sitting in the sheds unlawfully. He says that Mr Desmond responded, “You need to sort this out or else you can watch grass grow on your site”. Mr Xenitopoulos replied, “They can sit in the sheds for the rest of the week as far as I’m concerned”. Mr Xenitopoulos says that no comment was made about rain or wet weather, and he denies that he made any comment about being able to justify the failure to work because it was raining.
52 Mr Desmond states that after this conversation he went back to the smoko shed and told the workers that Mr Stephen was not going to be reinstated despite Mr Kohleis being allowed to remain on-site. He asked the workers what they wanted to do about it. A discussion then occurred. Mr Desmond says the workers told him words to the effect that, “they did not want to go back to work unless they felt safe”. He says the workers suggested that either Mr Kohleis be stood down, or that Mr Stephen should be allowed to come back on-site, “in order to make them feel safe once again”.
53 Mr Desmond remained on-site and had various discussions that day with Mr Xenitopoulos and the workers to try to resolve the dispute. He says that it was a common theme throughout the discussions with Mr Xenitopoulos and the workers that it was lucky that it was raining so that their actions could not be considered industrial action. He says that, for example, Mr Xenitopoulos said a few times, “If you weren’t here, they wouldn’t be working anyway because it’s raining”. This is denied by Mr Xenitopoulos.
54 Mr Desmond states that the workers then remained in the smoko shed for the rest of the day until about 2.30 pm or 3 pm, which he understood to be their normal knock off time.
55 There were approximately 38 Union members who did not work that day. The identities and trades of each of these workers is not revealed in the evidence.
56 Mr Desmond contacted Mr Ingham after he left the site for the day, and Mr Ingham said that he would come to the site to assist.
57 On 18 October 2017, Mr Desmond met Mr Ingham and Mr Stephen at the Qube project site at approximately 6.30 am. They walked into the smoko shed and had a meeting with the workers.
58 Mr Desmond states that during the meeting, the workers told Mr Ingham of their concerns regarding Mr Kohleis’ inability to keep them safe on-site and said that they did not want to go back to work until Mr Stephen was reinstated. Mr Desmond recalls that there were other safety issues raised, but does not recall exactly what they were. The workers advised Mr Ingham that they did not want to return to work until Mr Stephen was back on-site.
59 Mr Desmond states that he walked to a meeting room where he and Mr Ingham met Mr Xenitopoulos and Mr Curtis. Mr Xenitopoulos and Mr Curtis said that they would not be reinstating Mr Stephen, and that Mr Ingham responded by saying words to the effect:
We are at a stalemate then. I don’t think workers will agree to going back to work without representation. Can I go and talk to them?
60 Mr Xenitopoulos agreed that they could talk to the workers. Mr Desmond and Mr Ingham then had discussions with the workers. The workers’ position did not change and they advised Mr Desmond and Mr Ingham that they would not go back to work until Mr Stephen was reinstated “due to their safety concerns”. Mr Desmond said the workers informed them that their decision was to go home for the day.
61 Mr Ingham’s evidence is similar to that of Mr Desmond. He adds that when he initially met with the workers, they told him that they did not want to go back to work until Mr Stephen was reinstated and wanted to have a vote of no confidence in Mr Kohleis. Mr Ingham told them that he would speak with the management to see if he could resolve the issue. Mr Ingham states that after his meeting with MPG’s managers, he returned to the smoko shed and explained that management had taken the position that they would not be allowing Mr Stephen to come back to work. He states that the workers reinforced that they did not feel safe on-site without Mr Stephen as their delegate and HSR and that they were not prepared to go back to work until he was reinstated.
62 The workers left the Qube project site at around 8.30 am. There were approximately 46 workers who did not work that day.
63 On 19 October 2017, Mr Desmond attended the Qube project site at 6.30 am and spoke to the workers who were waiting in the smoko shed. He told the workers that there were discussions taking place between Mr Ingham and Barry Morris, a director of MPG, and that they were close to a solution. At some stage during the morning Mr Ingham called him and said that a resolution had been agreed and that Mr Stephen would be allowed to return to work.
64 Mr Ingham states that he spoke to Mr Barry Morris at about 7.45 am on 19 October 2017. They came to an agreement that both Mr Stephen and Mr Kohleis would receive warnings and that MPG’s managers would receive training. Mr Stephen would be permitted to return to the site.
65 Mr Ingham says he telephoned Mr Desmond and explained the outcome to him so that he could relay the information to the workers. He did not have anything else to do with the matter. Mr Ingham denies that he organised the workers at the Qube project site to take any action.
66 Mr Desmond states that Mr Xenitopoulos confirmed at about 11.15 am that an agreement had been reached. He went back to the smoko shed and conveyed the information to the workers. The workers said that they were happy with that and returned to work immediately. There were approximately 48 workers who had not worked that morning.
The extent of the rainfall on 17, 18 and 19 October 2017
67 There are varying accounts of the extent of the rainfall on 17, 18 and 19 October 2017 from witnesses who were present at the Qube project site.
68 The most contemporaneous account was recorded by Todd Maybury, the site manager for MPG, in the Qube Project Site Diary. The diary has the printed notation “Weather”, followed by the notations “am” and “pm”, against which entries could be entered. On 17 October 2017, Mr Maybury entered, “showers”, for both “am” and “pm”. On 18 October 2017, he entered, “cloudy/showers”, for both “am” and “pm”. On 19 October 2017, he entered “cloudy” for both “am” and “pm”.
69 In Mr Maybury’s first affidavit affirmed on 6 January 2020, he deposes that he would use phrases like “fine”, “cloudy”, “showers”, “rain” or “heavy rain” to describe the weather. He says his general practice was to enter “showers” in circumstances where: there was some on and off wet weather, but not enough to stop work for an extended period or require a wet weather walk; there was not enough water to impact visibility or to make the ground slippery; and/or where some workers might be required to stop work for a couple of minutes as the shower passes, but some workers would be able to keep going. He states that his practice was to write “rain” or “heavy rain” in the site diary when there was more rain than “showers” and/or there was enough rain to require a wet weather walk.
70 In his second affidavit affirmed on 31 January 2020, Mr Maybury said that the Qube project site was open and available for work to be completed, “other than any short periods of showers…”. Under cross-examination, it was put to him that the word “short” was made up, but he asserted that he could remember that there were short periods of showers.
71 In his third affidavit filed on 30 April 2020, Mr Maybury said that, on 17 October 2017, “there was only a passing shower that passed quickly”.
72 Under cross-examination, Mr Maybury, in response to a question about whether he had any independent recollection concerning rainfall on those dates, answered, “No, mostly just what I had written on the site diary”. He accepted that he could not recall when there was water falling from the sky. He seemed to have little recollection of how hard the water was falling. He did not accept that the reason the workers stayed in the smoko shed could have been that it was raining.
73 On 22 March 2018, Mr Xenitopoulos was subjected to an oral examination by the Commissioner under an examination notice, which was conducted pursuant to s 61F of the BCI Act. In the course of that examination, Mr Xenitopoulos said, with reference to a discussion with Mr Desmond on 17 October 2017:
It was raining during the day. I knew there was going to be rain for the rest of the week, and I said, “They can sit in the sheds for the rest of the week as far as I’m concerned”. So it was more not really, you know, and that’s how we left it, you know.
74 Later in the examination, Mr Xenitopoulos said, in relation to the same date:
There may have been some minimal works in some lower areas, but I don’t believe the areas that they could’ve done — the majority of their work, which most of them are structural trades, they wouldn’t have been able to do much work because of the weather that was occurring during the day.
75 Later, there was the following exchange between Mr Xenitopoulos and the Commissioner:
Commissioner: Can I just ask about inclement weather? At what point do you send the workers home?
Mr Xenitopoulos: It’s normally after four hours.
Commissioner: Okay. But that didn’t occur on any of these three days?
Mr Xenitopoulos: Well, look, the three days we had constant inclement weather. We had constant rain. But because my view was that they were taking illegal unlawful action that the wet weather clause didn’t apply.
Commissioner: Because they’re sitting in the sheds.
Mr Xenitopoulos: That’s right, because they — but we had consistent rain. If they weren’t taking unlawful action they would’ve been going home by 10.30.
76 In an affidavit sworn on 30 April 2020, Mr Xenitopoulos deposed:
On my recall while there was rain on 17 and 18 October 2017 it was not substantial enough to prevent work from commencing in protected undercover areas but do not believe work in exposed areas could have taken place. Work by non-CFMMEU trades did continue across those days in areas that were protected and undercover.
…
My view is that on 17 and 18 October 2017 there was heavy intermittent rain on-site that would have impacted certain work areas while the rain was falling. However workers were able to access Qube Project site from the Qube Project site amenities when it was not raining and working areas undercover and not impacted by the weather if work was available to them.
77 In an examination conducted by the Commissioner on 22 March 2018, Mr Curtis made it clear that his recollection of events on the relevant dates was poor. He asked for permission to refer to his notes and said, rather colourfully, “I can’t remember what I had for breakfast”. Mr Curtis specifically said that he could not recall the state of the weather on 18 October 2017.
78 In his affidavit filed on 28 May 2020, Mr Curtis deposed that he could not recall precisely the state of the weather on 17 October 2017, but he expected that it was not raining, or not raining heavily, because workers were congregating in areas that were not sheltered. Later in his affidavit, he said that he did not recall if it was raining. In respect of 18 October 2017, he said he could not recall exactly what the weather was like that day.
79 In his affidavit of 1 April 2020, Mr Stephen deposes that, on 17 October 2017, “it was raining at the site” just before starting time, which was 6.30 am. He does not say whether it was raining later during the day, or on the next two days.
80 In an affidavit of 1 April 2020, Mr Desmond states that when he arrived at the site at 6.20 am on 17 October 2017, “heavy rain was falling”. He says that during his meetings, various workers made repeated references to not being able to work as it was raining and a safety walk had not been completed. He says workers also raised concerns about the uncovered walk to the site in reference to the heavy rainfall. Mr Desmond says that during a conversation with Mr Curtis and Mr Maybury at about 7.30 am, he commented that it was raining. He states that at about 10 am a section of the vinyl roof over the portable toilets let go from a corner post due to the amount of water. He says that the workers then remained in the smoko shed for the rest of the day due to the rain.
81 Mr Desmond deposes that on the morning of 18 October 2017, it was raining. His affidavit does not indicate whether it was raining on 19 October 2017.
82 Mr Ingham was at the site on 18 October 2017, but cannot recall if it was raining.
83 Mr Kohleis deposes that he arrived at the Qube project site at about 6 am on 17 October 2017. He states that by 6.30 am the workers were not proceeding to their usual places of work, but congregating outside in front of the site in the open. His recollection is that it had rained overnight. He conducted a wet weather walk with Mr Maybury, and possibly one or two others. He had notified the Safety Committee that a wet weather walk was occurring. He states that some areas were identified as needing to be dewatered, and those areas were dewatered and the site was cleared for work.
84 Mr Kohleis states that following this process:
I was confident that the site was safe and work could be done by those workers who were instead congregating outside. Even if it was raining (which I don’t recall that it was) there were alternative works that could have been performed in other areas of the site (although ultimately subcontractors manage their alternative works).
85 Mr Kohleis arrived at the site at 6 am on 18 October 2017. He states that a wet weather walk was conducted by him, Mr Maybury and several others. He states that no safety issues were raised with him and the site was safe for normal works to continue.
86 Mr Kohleis states that on 19 October 2017 a wet weather walk was conducted with Mr Maybury and two others. A further walk was conducted at around 11.30 am. He states that from a safety perspective, there was no reason why workers could not have worked on-site, and no dewatering was required.
87 Mr Morris gave evidence that under the building contract for the Qube project, an extension of time request could be made on the basis of inclement weather, but that no such request was made for 17, 18 and 19 October 2017.
88 David Mobberley was the manager of a subcontractor, Fugen Masonry (Qld) Pty Ltd (Fugen), which employed bricklayers and labourers at the Qube project site. Mr Mobberley deposes that Fugen has a general rule of “no work, no pay”, but pays employees for inclement weather days. The employees were paid for 16 October 2017 due to the day being lost because of inclement weather. Fugen’s timesheets (which I consider are admissible as business records pursuant to s 69 of the Evidence Act and s 1305 of the Corporations Act 2001 (Cth)) record “industrial stoppage” for 17, 18 and 19 October 2017. Fugen’s employees were not paid for those days.
89 There are in evidence records of rainfall at the Gold Coast from the Bureau of Meteorology. The rainfall at Broadbeach itself was not recorded. The records are for rainfall recorded at weather stations at other areas of the Gold Coast, including Miami and Burleigh Waters to the south and Southport to the north. The closest station was at Miami, 4.7 km away from the Qube project site. The records show that there was rainfall at Miami of 5.0 mm on 17 October 2017, 5.4 mm on 18 October 2017 and 2.0 mm on 19 October 2017. The times at which the rainfall occurred are not shown. I do not consider that much weight can be placed upon these records in making findings about the level of rainfall at the Qube project site at the relevant times.
90 I have substantial doubts about the accuracy and reliability of aspects of Mr Desmond’s evidence. Mr Stephen gave evidence that as he was driving home from work at about 5 pm on 16 October 2017, he received the text message telling him not to attend work the following day. He then spoke to Mr Desmond by telephone. Mr Desmond says that not long after speaking with Mr Stephen, he received a call from a worker, whose name he cannot recall, and that the worker advised him that the workers would not be working until Mr Stephen was reinstated and that they had no confidence in Mr Kohleis.
91 There are two aspects of implausibility about this part of Mr Desmond’s evidence. First, Mr Desmond’s evidence was that he does not recall the name of the worker who called him, and did not even ask the worker for his name. Given that the call was supposedly conveyed by the workers proposing to take action that might be unlawful industrial action, it concerned a matter of significance to Mr Desmond in his role as a Union organiser. It seems most unlikely that Mr Desmond would not even bother to ask the name of the person who was providing this information.
92 Second, it is quite improbable that, by shortly after 5 pm on 16 October 2017, there could have been any collective decision by the workers that they would not be working until Mr Stephen was reinstated. Mr Stephen had not received the text message until after he left the worksite. Mr Stephen gave no evidence that he telephoned anyone else before or after calling Mr Desmond. The phone call from the unknown worker was supposedly received by Mr Desmond shortly after he finished his call with Mr Stephen. It is very unlikely that there could have been any collective decision by the workers between the time Mr Stephen was notified that he was not to return to the worksite and the worker supposedly telephoning Mr Desmond. I do not accept that Mr Desmond was told that the workers would not be working until Mr Stephen was reinstated. I do not accept that any such call took place.
93 Mr Desmond states that, on 17 October 2017, the workers suggested that, “either [Mr Kohleis] was stood down as well or that [Mr Stephen] was allowed to come back on site, in order to make them feel safe once again”. If the workers were concerned about Mr Stephen being excluded from the site because of safety issues, it would have been quite illogical for them to propose that they would return to work provided that Mr Kohleis (MPG’s health and safety advisor), was also removed from the site. It seems unlikely that the desire for Mr Stephen to be reinstated related to safety concerns. Given that Mr Desmond’s attitude expressed to Mr Xenitopoulos the evening before was that, “if one goes then the other one has to go”, it is likely that the suggestion that either Mr Kohleis be stood down as well or Mr Stephen be allowed to work came from Mr Desmond. It is probable that Mr Desmond has attributed his attitude to the workers and dressed it up as relating to safety concerns.
94 I regard Mr Desmond’s evidence as generally unreliable, and I am unwilling to accept his evidence except to the extent that it is adequately corroborated or is unchallenged.
95 There is no particular reason to doubt the evidence of Mr Ingham. His evidence was not damaged under cross-examination. I do not consider his evidence to contain such inconsistencies, contradictions or improbabilities as would provide a basis for me to reject it.
96 One of the significant issues is the extent of the rain at the Qube project on 17, 18 and 19 October 2017. I do not consider the evidence of any of the witnesses upon this issue to be entirely satisfactory. There is no doubt that there was rain, or at least showers, at the site on at least the first two of those days. However, the witnesses’ accounts of how much rain there was and its frequency and duration varied substantially.
97 Mr Stephen’s evidence about the rain over the three days was very limited. Mr Desmond’s evidence about the rain was also limited, but, in any event, I am not prepared to give that evidence any weight except to the extent it is corroborated.
98 Mr Curtis’ memory seems to me to be unreliable. Mr Maybury recorded that there were “showers” in the site diary on 17 and 18 October 2017. I am prepared to accept that that reflected his observations. I take the “showers” to refer to intermittent precipitation. However, I do not accept his further explanations in his affidavits as to what he meant by “showers”. Those explanations appear to have been the product of reconstruction long after the relevant dates. He seemed to have very little actual recollection of the extent of the rainfall.
99 I am not prepared to place any weight on the evidence of Mr Barry Morris or Mr Mobberley to the extent that it may suggest that work was available for the workers to perform despite the weather. Their evidence does not go directly to the extent of the rainfall. It seems that a view was taken, reflected in the evidence of Mr Xenitopoulos, that because the workers refused to work, the lost work was attributable to industrial action, rather than weather conditions, and the workers were not entitled to be paid. There is direct evidence about the extent of the rainfall which is more cogent, and which I prefer.
100 The most reliable account of the extent of the rainfall was given by Mr Xenitopoulos. His first account was given on 22 March 2018, some five months after the relevant dates. His memory is likely to be more reliable than that of the witnesses who gave their accounts when they provided affidavits for the proceeding. Even so, there was some contradiction in Mr Xenitopoulos’ evidence before the Commissioner. At one point he said that over the three days there was “constant rain”, but later he said that there was “consistent rain”. I think it is unlikely that there was “constant rain”. The Safety Committee held wet weather walks on the mornings of 17, 18 and 19 October 2017. Those walks are unlikely to have taken place if it was raining at those times. Mr Xenitopoulos’ description of “consistent rain” seems more in keeping with Mr Maybury’s recording of “showers” for 17 and 18 October 2017.
101 Mr Xenitopoulos’ affidavit describes rain on 17 and 18, but not 19 October 2017. However, his evidence before the Commissioner referred to rain over all three days. Another indication that there was rain on 19 October 2017 is provided by the fact that a wet weather walk was conducted at about 6.30 am and 11.30 am. The second walk would not have been necessary unless it rained after the first one.
102 Mr Xenitopoulos told the Commissioner that most of the workers were in the structural trades and they, “wouldn’t have been able to do much work because of the weather”. He also said that there, “may have been some minimal works in some lower areas”. He said that in view of the consistent rain, “If they weren’t taking unlawful action they would’ve been going home by 10.30”. This was a reference to cl 23.13 of the Award which states that where employees are prevented from working for more than an accumulated total of four hours of ordinary time in any one day, the employer will not be entitled to require the employees to remain on-site after the expiration of that time. I understand Mr Xenitopoulos to have expressed the opinion that the extent of the rain prevented the Union workers from working between 6.30 and 10.30 am on 17, 18 and 19 October 2017, and that they would have been entitled to leave the site if they had not been taking industrial action.
103 In his affidavit, Mr Xenitopoulos described, “heavy intermittent rain on-site” on 17 and 18 October 2017. He said that the rain, “would have impacted certain work areas while the rain was falling”. He also said that workers were able to access the Qube project site when it was not raining, and were able to work in, “areas undercover and not impacted by the weather if work was available to them”. In this passage, Mr Xenitopoulos expressed uncertainty about the availability of work in areas that were undercover or not impacted by the weather. He also said expressly, “while there was rain on 17 and 18 October 2017 it was not substantial enough to prevent work from commencing in protected undercover areas but do not believe work in exposed areas could have taken place”.
104 I accept that there was “consistent” rainfall on 17, 18 and the morning of 19 October 2017 at the Qube project site, by which I mean that there were intermittent, but frequent, showers of rain, which were heavy.
Consideration of alleged contraventions of s 46 of the BCI Act
105 Section 46 of the BCI Act provides that, “A person must not organise or engage in unlawful industrial action”.
106 It is necessary for the Commissioner to prove that:
(1) The workers engaged in “unlawful industrial action” at the Qube project on 17, 18 and/or 19 October 2017.
(2) Mr Desmond and/or Mr Ingham organised the unlawful industrial action or, alternatively, were knowingly concerned in the taking of the unlawful industrial action by the workers.
107 The Commissioner pleads that the workers took “industrial action” within s 7(1)(c)(ii) of the BCI Act by failing or refusing to perform any building work at all. Although it is pleaded that the employees also failed or refused to attend work, that allegation did not seem to be pressed.
108 I find that the workers attended the Qube project, but refused to perform any work on 17 and 18 and the morning of 19 October 2017. They did so in order to pressure MPG into reinstating Mr Stephen, or into at least also excluding Mr Kohleis.
109 However, the respondents argue that this was not “industrial action” within s 7(1)(c)(ii) because the workers were entitled, under the inclement weather provisions in cl 23 of the Award, to not perform work. They argue that the refusal of the workers to perform work when they had no legal obligation to do so could not amount to “industrial action”. The respondents also assert that the workers were entitled to refuse to perform work because that was permitted under the custom and practice at the site during periods of inclement weather.
110 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (2020) 297 IR 151, I held at [129]–[130]:
[129] I accept that there is no “failure or refusal” to “attend work” or “perform any building work at all” within s 7(1)(c)(ii) of the BCI Act where there is no legal obligation on employees to attend or perform work. There are many circumstances in which employees may have no legal obligation to attend or perform work, and indeed have legal authorisation to so refuse. For example, under the National Employment Standards, employees may be entitled to take annual leave, personal/carer’s leave, parental leave, community service leave and long-service leave. Under an award or an enterprise agreement, employees may be entitled to be absent on certain days of the week, or to take certain breaks between, or within, periods of work. They are entitled to refuse to attend work and perform work during such periods. It may be noted that in Adams [v Director of the Fair Work Building Industry Inspectorate (2017) 258 FCR 257], it was held at [91] that s 19(1)(c) of the FW Act (the equivalent of s 7(1)(c)) applies only to action taken by more than one employee (as it refers to “employees”). Section 7(1)(c) cannot be sensibly interpreted such that employees are taken to have engaged in “industrial action” if they refuse to attend work during periods of leave or breaks they are entitled to take under statute, awards or enterprise agreements, even if they engage with each other in so refusing (I leave aside any potential application of paras (a) or (b) of s 7(1)) in particular circumstances.
[130] That is not to construe the provision as requiring that the employees’ conduct must occur within the area of disputation or bargaining, such an approach having been rejected in Adams at [59]. It is a matter of construing s 7(1)(c) of the BCI Act in light of the FW Act, particularly s 45 (a person must not contravene a term of a modern award), s 50 (a person must not contravene a term of an enterprise agreement) and s 61(1) (the National Employment Standards cannot be displaced)… Just as the definition of “industrial action” in s 19 of the FW Act must be read in light of ss 45, 50 and 61(1) of the FW Act, so too must it be intended that the definition of “industrial action” in the BCI Act be read in light of those provisions.
111 A “failure” or “refusal” to attend or perform work within s 7(1)(c)(ii) of the BCI Act necessarily requires the existence of a legal obligation, whether contractual or statutory, to attend or perform work. It follows that if the workers were under no legal obligation to perform work at the Qube project site at the relevant times, they cannot have taken “industrial action” by refusing to perform work at those times: see also Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (2019) 286 IR 52 at [221].
112 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262, I held (Allsop CJ and Griffiths J agreeing) at [99]:
Section 417 of the [FW] Act is contravened when a relevant person “organises or engages in” industrial action within the relevant period. The expression “industrial action” is defined in s 19 by its effect upon work or the performance of work. For example, under subs (a), it includes performance of work in a manner different to which it is customarily performed; under subs (b), a ban, limitation or restriction on the performance of work; and, under subs (c), a failure or refusal to attend or perform work. It follows that a contravention of s 417 depends upon the effect of an action that is organised or engaged. The purpose of the action is irrelevant under s 417. So, for example, even where industrial action is organised as a response to unlawful conduct by an employer, there will be a contravention of the provision: see Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2013] FCAFC 53 at [20]. A person may breach s 417 without having the purpose of disrupting work. On the other hand, a person who organises or engages in action with the purpose of the disrupting work does not contravene the provision if the action does not have that effect: see Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at [52]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [142]–[148].
113 Sections 5 and 46 of the BCI Act are not relevantly distinguishable from ss 19 and 417 of the FW Act. The purpose of the workers in refusing to perform work was irrelevant to the question of whether they took “industrial action”. A person who organises action with the purpose of disrupting work does not contravene s 46 of the BCI Act if the action does not have the effect of disrupting work.
114 The issue of whether the workers took “industrial action” on 17, 18 and 19 October 2017 depends upon whether they had any legal obligation to work. Whether they were entitled to refuse to work depends upon the effect of cl 23 of the Award.
115 Clause 23.5 of the Award provides that, “When inclement weather conditions exist an affected employee is not required to commence or continue to work where it is unreasonable or unsafe to do so”.
116 Clause 23.2 defines “inclement weather” to mean, “the existence of rain…where it is not reasonable or it is unsafe for employees to continue working in those conditions”.
117 Clause 23.13(b) provides, relevantly, that:
Where the employees are in the sheds, because they have been rained off, or because it is at starting time, morning tea, or lunchtime, and it is raining, they will not be required to go to work in a dry area…unless:
(i) the rain stops; or
(ii) a covered walkway has been provided; or
(iii) the sheds are under cover and the employees can get to the dry area without going through the rain…
118 In the course of an examination conducted by the Commissioner on 23 March 2018, Mr James Morris was asked about what is considered to be “inclement weather”. He answered, relevantly:
My general understanding of it is if it is raining and workers are participating in construction work in an area which they can get wet, they’re not entitled to have to work in that area.
119 When asked about whether a certain amount of rain was required before it could be considered “inclement weather”, Mr James Morris answered:
It’s subjective. Look, it’s any type of rainfall. I suppose, again, if a worker is in an area where they can get wet, it’s perceived to be inclement weather.
120 I interpret Mr James Morris’ answers as indicating that, for the purposes of cl 23.5 of the Award, MPG considered that it was unreasonable or unsafe for workers to work in exposed areas while any rainfall was taking place. That is consistent with Mr Maybury’s evidence that, “I generally agree that when it was raining workers were not required to work in the rain”. In addition, under cl 23.13(b), workers were not required to walk through the rain to access the Qube project site.
121 There were approximately 38 workers who refused to work on 17 October 2017, 46 on 18 October 2017 and 48 on the morning of 19 October 2017. The evidence does not identify the trades of each of these workers, nor where on the construction site their work was to be carried out, nor whether their work was to be carried out undercover or in exposed areas. Mr Xenitopoulos’ evidence was that most of the workers were in the “structural trades” and those workers would not have been able to do “much work” because of the rain. However, his evidence that they would have been going home by 10.30 am if they had not been taking industrial action indicates that those workers would not have been performing any work because of the rain. Mr Kohleis’ evidence suggests that there may have been some work that some of the workers could have done undercover. However, the evidence is too equivocal and uncertain to satisfy me that there was, in fact, work that was undercover or otherwise out of the rain available for any of those workers.
122 I have found that the rain at the relevant times was consistent, but not constant. I accept that there were some brief periods when the rain had stopped. However, I interpret “the existence of rain” in cl 23.2 of the Award to apply, not only where rain is actually falling, but where it has rained and the presence of rainwater makes it unsafe to work. It can readily be imagined that pooling of rainwater would create a risk of slipping and falling, or electrocution where an electrical cord is running through a wet area. The practice of the Safety Committee conducting wet weather walks after a period of rain was evidently designed to identify areas where water needed to be removed in order to make the site safe.
123 Mr Kohleis’ evidence is that wet weather walks were conducted by part of the Safety Committee at about 6.30 am on 17, 18 and 19 October 2017. It is apparent that there must have been enough rainfall overnight to warrant wet weather walks. Mr Kohleis states that on each occasion the site was cleared for normal work to continue. Some work was done at the site by non-Union employees, although it is not apparent that any work was done outside the undercover areas. However, Mr Kohleis does not give evidence that the Union workers who were refusing to work were notified that the site had been declared by the Safety Committee to be safe for work. Mr Curtis’ affidavit annexes an email he sent to a subcontractor at 12.51 pm on 17 October 2017 saying that it was agreed following a wet weather walk that the site was safe to resume work, but there is no evidence that the workers who were refusing to work had been notified that the site had been cleared.
124 In my opinion, following any significant rainfall, the workers were entitled under cl 23.5 of the Award to not work, on the basis that it was unreasonable or unsafe for them to do so, until informed that the site had been cleared for the resumption of work. I am not satisfied on the evidence that they were so informed.
125 Further, I am satisfied by the evidence of Mr Xenitopoulos that the extent of the rain on 17, 18 and 19 October 2017 meant that the workers would have been sent home by 10.30 am on the basis that they were prevented from working for four hours from starting time, but for MPG’s view that they were taking “industrial action”. This demonstrates that, under the terms of cl 23.13(a) of the Award, the employees were entitled to not perform work.
126 I find that the Commissioner has not demonstrated that the workers were under any legal obligation to work at the Qube project site on 17 and 18 and on the morning of 19 October 2017. Accordingly, the Commissioner has not proved that the workers took “industrial action” within s 7(1)(c) of the BCI Act.
127 I will briefly address the respondents’ submission that the employees were entitled to refuse to work because it was the “custom and practice” at the Qube project site for the employees not to work during inclement weather. First, I find that the reason why it was the custom and practice for work not to be performed during inclement weather was that the workers were permitted not to work under the terms of the Award. Second, it is unclear on what other basis the respondents may be asserting that a failure or refusal to work by reason of custom and practice may be excluded from the definition of “industrial action”.
128 It is necessary to consider whether Mr Desmond and/or Mr Ingham “organised” the workers’ refusal to work in case I am wrong in my conclusion that the Commissioner has failed to prove that there was “industrial action”.
129 The term “organise” is not defined in the BCI Act or in the FW Act. However, that term has been considered in the context of ss 343, 348 and 417 of the FW Act.
130 In Australian Building and Construction Commissioner v Huddy [2017] FCA 739, White J held:
67 The “organisation” of “action” (ss 343(1) and 348) or “industrial action” (s 417(1)) involves the intentional arranging, bringing about, putting in place, procuring or coordinating the action in question. Meanings of this kind seem consistent with the first meaning given by the Macquarie definition to the word “organise”, namely:
To form as or into to a whole consisting of interdependent or coordinated parts, especially for harmonious or united action: to organise a party.
However, saying this begs questions about the kind of conduct required. The circumstance that the proscription is on the organisation of a form of human activity and not inanimate objects suggests that organising has the connotation of positive conduct which is intended to, and does, induce or procure others to engage in conduct and/or which marshalls or coordinates the activities of those who are willing to do so. Understood in this way, conduct constituting organising in the relevant sense may take a variety of forms. As was said by Isaacs J, in a different statutory context, in Pirrie v McFarlane (1925) 36 CLR 170 at 203 the word “organise” is “of large connotation”.
…
71 Some decisions of Fair Work Australia indicate that conduct by way of encouragement for, or support to, industrial action will constitute an organisation of the industrial action in the relevant sense. This may be so but encouragement can take a variety of forms, ranging from active exhortation, on the one hand, to passive acquiescence, on the other. That being so, one would not expect that any form of encouragement at all may amount to the organisation of industrial action. In my opinion, it will be a rare case, if any, in which a person may be found to have organised industrial action without having engaged in a form of positive conduct which brings about, manages, or maintains the industrial action.
…
147 The submissions of the Commissioner depended, to a significant extent, on it being accepted that a person will organise industrial action in the requisite sense if the person “encourages and enables” that action. For the reasons given above, I do not accept that that analysis is appropriate. Instead, I consider that organising involves acts of positive and intentional conduct bringing about or maintaining, or contributing in a material way to the bringing about or maintenance, of industrial action…
(Citations omitted.)
131 In Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338, Charlesworth J held:
53 In reaching my conclusion that the CFMEU committed only one contravention, I have given the word “organise” in s 417 of the FW Act a meaning that encompasses the concept of “marshalling” or “rallying”, which may inherently involve a number of discrete acts directed at achieving cohesiveness in a result (in this case, a single episode of industrial action).
132 The Commissioner relies upon the following passage from the judgment of Jessup J in Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) (2017) 268 IR 178:
32 In a number of areas, the applicant’s case that one (or, in some cases, two) of the individual respondents organized industrial action taken by workers on a construction site involved a submission that the court should infer that fact from events that were externally observable, such as, and most commonly, the arrival of the respondent on the site, the insistence by that respondent that there be a meeting of the workers, the holding of the meeting where the workers were addressed by the respondent and the subsequent departure of the workers from the site. As a Judge sitting in the Fair Work Division of the Court, I think I may be permitted the observation that such a sequence of events is the paradigm case of a union organizer organizing industrial action in the construction industry. As they say, a conclusion to that effect satisfies what is sometimes referred to as the Duck Test.
133 The Commissioner cannot point to any direct evidence demonstrating that Mr Desmond or Mr Ingham organised the action taken by the workers. Such direct evidence could only come from witnesses who were present at the meetings. Mr Desmond and Mr Ingham both deny that they organised the action, asserting that it was organised by the workers themselves. Mr Stephen’s evidence does not indicate who organised the action. None of the other workers who were at the meetings were called to give evidence.
134 Therefore, it is necessary for the Commissioner to establish his case as a matter of inference. In G v H (1994) 181 CLR 387, Brennan and McHugh JJ said at 390:
An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law.
135 In Henderson v Queensland (2014) 255 CLR 1, Gageler J observed at [89]:
Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained by Kitto J in Jones v Dunkel:
“One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed”.
136 The facts proved must give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture: Jones v Dunkel (1959) 101 CLR 298 at 304; Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162; Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278 at [34].
137 In Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632, the Full Court observed at [134]:
…In assessing a circumstantial case, it is important to bear in mind that the facts ultimately to be proven are those that are in issue, and not necessarily all the circumstantial facts themselves. As Dawson J observed in Shepherd v The Queen (1990) 170 CLR 573 at p 580, “[T]he probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.” This invites consideration of the combined weight of circumstantial facts, for it is the essence of a circumstantial case that the combined force of its components should be considered, and proof of some circumstantial facts may be affected by the court’s assessment of other circumstantial facts: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J). Courts may fall into error by compartmentalising circumstantial facts, rather than standing back and assessing the broader picture. In Transport Industries Insurance Company Ltd v Longmuir [1997] 1 VR 125 at 141 Tadgell JA observed that a true picture is to be derived from an accumulation of detail –
The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details: cf. Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944; Shepherd v R (1990) 170 CLR 573 at 579-80.
138 The Commissioner submits that an inference that Mr Desmond organised the workers’ refusal to work should be drawn from evidence including the following:
Mr Desmond was employed by the Union as an organiser. He accepted that his role was in part to organise workers involved in industrial disputes to “try and sort things out”, to “come and resolve an issue”, to provide the workers with advice and information including their rights and entitlements and to discuss with them what action might be taken in response to the concerns they might have.
When Mr Stephen called Mr Desmond on 16 October 2017 and reported that he had been asked not to attend work, Mr Desmond responded by saying that he would attend the site the next day.
During the call Mr Desmond advised Mr Stephen to attend work contrary to Mr Xenitopoulos’ request. The goal of reinstating Mr Stephen would be frustrated if he was not present.
Mr Desmond says that he told the unnamed worker who called him on 16 October 2017 that he would, “attend the site in the morning and try to sort it out”.
Mr Desmond says that he then spoke to Mr Xenitopoulos on the phone and told him, “I will be up there in the morning to talk to you about it and try and sort it out but if one goes then the other one has to go”. In his evidence, Mr Desmond said that it was his view that both workers should have been stood down.
Work only stopped at the Qube project site after Mr Desmond arrived at the site on 17 October 2017. It should be inferred that it did not become known to the workers that Mr Stephen had been asked not to attend work until after Mr Desmond arrived.
After meeting the workers, Mr Desmond told Mr Xenitopoulos that, “My members are sitting in the shed until Chris Stephen is reinstated” and “You need to sort this out or else you can watch grass grow on your site”. Mr Desmond admits that he said these words.
It should be inferred that the decision to refuse to perform the work was made at the meeting attended by Mr Desmond.
Mr Desmond remained at the site throughout the day on 17 October 2017 and provided assistance and advice to the Union members.
Mr Desmond participated in a meeting with the workers on 18 October 2017, and immediately after it concluded the Union members attending the meeting left the site.
Mr Desmond participated in a meeting with the workers on 19 October 2017 at about 6.30 am. Shortly afterwards, in a conversation with Mr Xenitopoulos and Mr Curtis, he said words to the effect that the workers would not return to work until Mr Stephen was returned to work.
Mr Desmond participated in a meeting with the workers on 19 October 2017 at about 11.15 am. Shortly afterwards, he told Mr Xenitopoulos that the workers were returning to work. They then returned to work at about 11.30 am.
139 The respondents’ case was that the decision to refuse to work was made and organised by the workers themselves, and that Mr Desmond and Mr Ingham were mere conduits and negotiators between the workers and the management of MPG.
140 The statements made by Mr Desmond relied upon by the Commissioner in the fourth, seventh, eleventh and twelfth dot points above are not necessarily inconsistent with Mr Desmond merely relaying decisions made by the workers. However, I am persuaded that other evidence allows an inference to be drawn that Mr Desmond organised the action taken by the workers.
141 As I have discussed, Mr Stephen’s evidence was that he received a text message as he was driving home from work after 5 pm on 16 October 2017, asking him to not come to the site while an investigation was being conducted, and that he then called Mr Desmond. I reject Mr Desmond’s evidence that shortly after he finished speaking to Mr Stephen, he received a call from a worker, whose name he does not know, informing him that the workers had decided they would not return to work until Mr Stephen was reinstated. In the absence of evidence from Mr Stephen that, either before or very shortly after calling Mr Desmond, he told any of the workers that he had been stood down, I do not accept that the workers were then aware of that fact, nor that they had had the opportunity to make a decision that they would not return to work until he was reinstated.
142 I accept that on 17 October 2017, the workers were gathered in the smoko shed at starting time because it was raining. The evidence of Mr Desmond and Mr Stephen was that they met outside the Qube project site just before starting time, and walked to the smoko shed together. Mr Stephen has not suggested that he had talked to any of the workers between the time he received the text message and the time he entered the smoko shed with Mr Desmond. Accordingly, it is improbable that the workers were aware that Mr Stephen had been stood down until Mr Stephen and Mr Desmond entered the smoko shed.
143 Mr Desmond’s evidence was that a meeting was held, during which the workers said that they did not want to return to work until Mr Stephen was reinstated. He says that it was apparent to him that this decision had been made prior to him arriving at the site. However, it is likely that Mr Desmond informed them that Mr Stephen had been stood down. I accept Mr Stephen’s evidence that he was not involved in the meeting, so it must have been Mr Desmond who conveyed the information to the workers. I find that a decision to refuse to work was not made by the workers until Mr Desmond had met with them.
144 The context of the dispute was that the Union’s site delegate had been asked not to return to the site pending an investigation into his conduct in connection with his role as site delegate. Mr Stephen had telephoned Mr Desmond on 16 October 2017 to inform him of the situation, inferentially because he was seeking assistance from Mr Desmond to have MPG change its decision. Mr Desmond said that he would come to the site the following morning to try to sort it out.
145 Mr Desmond telephoned Mr Xenitopoulos on 16 October 2017 and, in the course of the discussion, said:
I will be there in the morning to talk to you about it and sort it out but if one goes then the other one has to go.
Mr Desmond states that this reflected his view that if there was an altercation at work and it was necessary to stand employees down, all employees involved should be stood down.
146 The words “but if one goes then the other one has to go” were not in the nature of a request, but a demand. Mr Desmond was indicating that Mr Stephen had to be allowed to return to work, or otherwise Mr Kohleis had to also be stood down. It is apparent that Mr Desmond, as a Union organiser, had a motivation to apply industrial pressure to MPG, namely to achieve the reinstatement of Mr Stephen.
147 The idea that “if one goes then the other one has to go” is the same “suggestion” that Mr Desmond says was later made by the workers on 17 October 2017. It seems likely that Mr Desmond conveyed the demand he had made of Mr Xenitopoulos to the workers. The fact that the workers made a “suggestion” after meeting with Mr Desmond which reflected the precise demand that Mr Desmond had previously made of MPG strongly suggests that they did so at Mr Desmond’s instigation.
148 As I have said, if the workers had concerns about their safety, it would have been illogical to decide that they were prepared to return to work if Mr Stephen (the Union’s HSR), and Mr Kohleis (MPG’s health and safety advisor), were both excluded from the site. This suggests that the supposed issues about safety were a construct. This construct seems likely to have been devised to dress up the refusal to perform work as related to safety concerns. Given that Mr Desmond’s demand of Mr Xenitopoulos was made even before meeting the workers, an inference is available that it was Mr Desmond who devised that construct.
149 It is apparent that Mr Desmond was asked by Mr Stephen to assist him to have MPG change its decision and Mr Desmond agreed to attend the site to “sort it out”. An inference is available that Mr Desmond, in his role as a Union organiser, informed the workers that Mr Stephen had been stood down; informed them of the position he had conveyed to Mr Xenitopoulos that if one goes then the other one has to go; and instigated and procured the making of a decision by the workers that they would not perform work until Mr Stephen was reinstated or Mr Kohleis was also excluded. Mr Desmond’s conduct amounts to “organising” the refusal to perform work.
150 The Commissioner observes that none of the workers who refused to perform work gave evidence, and submits that an inference under the rule in Jones v Dunkel should be drawn against the respondents. The Commissioner relies upon the following passage from The Kane Constructions Case:
34 The respondents submitted that the applicant had the unchanging onus of proving his case, and that his failure to call direct evidence of what was said by the organisers in (most of) the site meetings of workers could not be cured by asking the court to infer what most probably was said, and by whom, in the course of those meetings. At the general level, that submission cannot be accepted. The applicant bore the legal onus, of course, and did so throughout, but the evidentiary onus was capable of changing depending on the state of the evidence from time to time and from whom any gaps in the evidence would, most naturally, be expected to be filled. The meetings of workers on the various sites were union business. It was, in my view, the respondents who most naturally would be expected to call evidence of what was said at them. At least the individual respondents themselves would be expected to give their own versions of such matters. The failure of every one of them to enter the witness box justifies the conclusion, which I reach, that they would have been unable to give any direct evidence to undermine the applicant’s inferential case.
151 This passage is not entirely applicable to the present case, as the respondents did give evidence. The respondents submit that no Jones v Dunkel inference should be drawn in respect of their failure to call the workers to give evidence because the workers’ evidence could have exposed them to a civil penalty for contravention of s 46 of the BCI Act. That is because the workers’ evidence may have involved them admitting that they had refused to perform work upon the Qube project in contravention of s 46 of the BCI Act.
152 Penalty privilege is similar to, but distinct from, privilege against self-incrimination: Anderson v Australian Securities and Investments Commission [2013] 2 Qd R 401 at [17]. A party may not be ordered to give evidence where the evidence may tend to prove that the witness is liable to a civil penalty unless certain warnings are given under s 128 of the Evidence Act.
153 In Fabre v Arenales (1992) 27 NSWLR 437, Mahoney JA (Priestly and Sheller JJA concurring) held at 449–450:
The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance…
These matters are of relevance in the present case. A Jones v Dunkel inference may not arise if, for example, a witness has a reason for not telling the truth or refusing to assist and the party who may call him is aware of this. If the Government Insurance Office had been the party and Mr Arenales merely a witness, it is at least arguable that no inference would be drawn from the fact that he was not called for the defendant. If called he would have been asked in effect to admit a crime of some seriousness.
154 In Adler v Australian Securities and Investments Commission; Williams v Australian Securities and Investments Commission (2003) 179 FLR 1; [2003] NSWCA 131, Giles JA (Mason P and Beazley JA agreeing), explained why a Jones v Dunkel inference may be drawn where a respondent to a civil penalty proceeding fails to give evidence:
[655] The appellants submitted that the trial judge should have held, and that we should now hold, that a Jones v Dunkel inference is not available in civil penalty proceedings. Emphasising their penal nature, they said that civil penalty proceedings attracted the reasoning of the High Court in the criminal case of RPS v The Queen (2000) 199 CLR 620…
…
[657] The contrast between a criminal trial and a civil trial was emphasised, in a similar context, in Azzopardi v The Queen (2001) 205 CLR 50 at [34]:
[34] The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt, per Gaudron A-CJ, Gummow, Kirby and Hayne JJ. It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight in considering whether the prosecution has proved the accusation beyond reasonable doubt, per Mason CJ, Deane and Dawson JJ; at 235, per Brennan and Toohey JJ. Further, because the process is accusatorial and it is the prosecution that always bears the burden of proving the accusation made, as a general rule an accused cannot be expected to give evidence at trial. In this respect, a criminal trial differs radically from a civil proceeding. As was pointed out in the joint reasons in RPS:
In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case.”
[Emphasis added]
[658] Proceedings for civil penalties do not share the same fundamental features of a criminal trial. Civil penalties can fairly be regarded as punitive, with a resemblance to fines imposed on criminal offenders, but the resemblance is not identity.
[659] It is necessary to focus on these proceedings brought under the Act, rather than some general class of civil penalty proceedings, since the statutory foundation for and incidents of the proceedings may affect the view taken. As used in the Act the civil penalty provisions do not necessarily lead to imposition of pecuniary penalties, and may lead to a compensation order with the same effect as if the company had brought civil proceedings for breach of the directors’ duties or to a disqualification order made not punitively but protectively. They are not to be equated with provisions for criminal offences. More important, the civil penalty proceedings are expressly to be maintained by civil law processes, not by a criminal trial with its fundamental features.
[660] When civil procedures have been adapted in civil penalty cases, it has not been because of equation with a criminal trial. It has been because of the privilege against exposure to penalties. As was pointed out in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission at [13], the privilege against exposure to penalties has its origin in the rules of equity relating to discovery, although it has become a principle of the common law. While it was said at [31] that the privilege against exposure to penalties today “serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it”, from the context and citation of Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129 regarding the privilege as a reflection of the privilege against self-incrimination, that fell well short of equating proceedings for civil penalties with criminal proceedings.
[661] In the end the argument must be that it would not be consistent with this stance against self-incrimination for an inference adverse to the person from whom a civil penalty is claimed to be drawn because of the failure of the person to give evidence. That reasoning did not find favour in RPS v The Queen, in which the “right to silence” was not thought to be a useful basis for reasoning: (at [22]). To say that a person cannot be forced to give evidence against himself, by providing discovery or answering interrogatories or, in a criminal context, making a statement to the police, says little when it comes to the giving of evidence in the person’s own case. In ordinary civil proceedings the defendant cannot be forced to give evidence in his own case. Civil penalty proceedings are no different in that respect. In my opinion, it was open for Jones v Dunkel inferences to be drawn against Mr Adler, Adler Corp and Mr Williams in these proceedings.
155 These cases distinguish between the drawing of a Jones v Dunkel inference in circumstances where the giving of evidence by a party may tend to incriminate the person and circumstances where the giving of evidence may tend to implicate the person in the contravention of a civil penalty provision. The same reasoning should be applied to the calling of a potential witness, who is not a party, in a civil penalty proceeding.
156 In the present case, the workers who refused to work at the Qube project are not parties to the proceeding. However, they are naturally in the “camp” of the respondents. They were members of the Union. They were represented by Mr Desmond and Mr Ingham in, at least, the communication of their demands to the management of MPG. Those workers could be expected to be in a position to give evidence as to the roles of Mr Desmond and Mr Ingham during the meetings.
157 The respondents were in a position to identify or ascertain the identities of the workers. The Union had their contact details. However, the workers were not called to give evidence.
158 If the workers were called to give evidence, the provisions of s 128 of the Evidence Act would have applied. Under s 128(3), if the Court determines that there are reasonable grounds for a witness to object to giving evidence on the ground that the evidence may tend to prove that the witness is liable to a civil penalty, the Court is required to give particular information to the witness. Such information includes that the witness need not give evidence unless required by the Court to do so, and that the Court will give a certificate if the witness willingly gives the evidence without being required to do so, or if the witness gives the evidence after being required to do so. Under s 128(4), the Court may require the witness to give evidence if the Court is satisfied that, relevantly, the interests of justice require that the witness give the evidence. The effect of s 128(7) is that in any proceeding in an Australian Court, evidence given by a person in respect of which a certificate has been given cannot be used against the person.
159 Accordingly, the workers could have given evidence without fear of exposure to a civil penalty.
160 In these circumstances, I consider that it is appropriate to draw a Jones v Dunkel inference against the respondents. This means that it can be inferred that the workers would not have provided evidence that assisted the respondents’ case. Further, it allows any inference that is available on the evidence to be more confidently drawn. However, the failure to call the workers cannot be used to fill gaps or convert suspicion into inference: see Jones v Dunkel at 308, 313 and 321.
161 I am satisfied that an inference should be drawn that Mr Desmond organised the workers’ refusal to perform work on the Qube project on 17 October 2017.
162 It may be noted that in Oran Park Motor Sport Pty Limited v Fleissig [2002] NSWCA 371 at [66] it was held that the principle from Blatch v Archer (1774) 98 ER 969 at 970 may be applied where a party has given deliberately false evidence. However, the Commissioner has not contended for the drawing of an inference on such a basis in the present case.
163 On 18 October 2017, Mr Desmond attended the Qube project site at starting time. Mr Desmond, together with Mr Stephen and Mr Ingham, met the workers in the smoko shed. Mr Desmond claims that the workers told Mr Ingham that they did not want to go back to work until Mr Stephen was reinstated. He says that later, the workers confirmed that they would not go back to work until Mr Stephen was reinstated due to their safety concerns, and said that a decision was made to go home for the day. The workers then left work at around 8.30 am.
164 Having regard to my conclusion that Mr Desmond organised the workers’ action on 17 October 2017 and the fact that the workers decided that they would not work when meeting with Mr Desmond on 18 October 2017, together with the application of the rule in Jones v Dunkel, I infer that Mr Desmond induced or gave positive encouragement to the workers not to return to work, and organised the action taken by the workers on 18 October 2017.
165 On 19 October 2017, Mr Desmond attended the Qube project site at starting time and spoke to the workers in the smoko shed. He communicated at least that there were discussions taking place between Mr Barry Morris and Mr Ingham and that they were close to a resolution. The workers did not agree to return to work at that stage. Later, Mr Desmond was informed by Mr Ingham that a resolution had been reached and after a discussion with Mr Xenitopoulos, he told the workers at about 11.15 am that management had agreed to allow Mr Stephen back to work. At about 11.30 am he told Mr Xenitopoulos that the workers had agreed to return to work.
166 For the same reasons as in relation to 17 and 18 October 2017, I infer that Mr Desmond induced or gave positive encouragement to the workers to decide not to return to work, and organised the action of the workers in refusing to work on the morning of 19 October 2017.
167 The Commissioner also pleads that Mr Desmond was “knowingly concerned” within the meaning of s 92(1)(a) of the BCI Act in the workers’ contraventions of s 46 and is, pursuant to s 92(2), taken to have also contravened that provision.
168 Being knowingly concerned in a contravention requires intentional participation in, association with, implication in, or a practical connection with the contravening conduct: Yorke v Lucas (1985) 158 CLR 661 at 670; Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 at [26]. What is required is the doing of something which acted to help, encourage or induce the contravention: HIH Insurance Limited (in liquidation) v Adler [2007] NSWSC 633 at [35]. To form the requisite intent, the person must have knowledge of the essential matters which go to make up the contravention, whether or not the person knows that those matters amount to a contravention: Giorgianni v The Queen (1985) 156 CLR 473 at 479–480, 493, 500; Construction, Forestry, Mining and Energy Union v Clarke at [26]). A person’s knowledge of each element of a contravention may be inferred from all the circumstances: Australian Building and Construction Commissioner v Huddy at [455]–[456].
169 Upon an assumption that the workers contravened s 46 of the BCI Act, I would find that Mr Desmond was knowingly concerned in that contravention for the same reasons I have given in relation to my finding that he organised such action.
170 It was not in dispute that Mr Desmond’s conduct was engaged in within the scope of his actual or apparent authority as an officer of the Union. Accordingly, the Union is taken to have also engaged in that conduct pursuant to s 94(1) of the BCI Act.
171 Mr Ingham had limited involvement in the events of 17, 18 and 19 October 2017. He found out about the dispute when he received a call from Mr Desmond on 17 October 2017. On 18 October 2017, Mr Ingham, Mr Desmond and Mr Stephen walked into the smoko shed where the workers were waiting. Mr Ingham says that he had a meeting with the workers and some of them said that they did not want to go back to work until Mr Stephen was reinstated. He says that decision had been made before he arrived.
172 Mr Ingham negotiated with the MPG management to attempt to resolve the dispute. I do not consider that the terms of those discussions indicate that Mr Ingham was involved in organising the workers’ refusal to work. They suggest no more than that Mr Ingham was relaying the workers’ concerns about having Mr Stephen reinstated and attempting to negotiate a resolution. Mr Ingham then returned to the smoko shed to speak with the workers and explained the discussions.
173 On 19 October 2017, Mr Ingham spoke to Mr Barry Morris and negotiated an outcome to end the dispute involving reinstatement of Mr Stephen.
174 Mr Ingham denies that he organised the workers at the Qube project to take any action.
175 As I have said, there is no particular reason to doubt the truth and accuracy of Mr Ingham’s evidence. The action taken by the workers had commenced on 17 October 2017, and there is no evidence that Mr Ingham had any involvement with the dispute until he arrived at the site on 18 October 2017. Mr Ingham’s evidence that the workers had decided not to go back to work until Mr Stephen was reinstated before he arrived must be correct, as that decision had been taken the day before. The evidence does not indicate that he organised the action they took. The drawing of a Jones v Dunkel inference does not allow a conclusion that Mr Ingham organised the refusal to work.
176 I find that the Commissioner has not demonstrated that Mr Ingham organised the refusal by the workers to work. For the same reasons, I find that the Commissioner has not demonstrated that Mr Ingham was knowingly involved in the action taken by the workers.
177 I have found that Mr Desmond, and by extension the Union, did organise the workers’ actions on 17, 18 and part of 19 October 2017. However, I have also found that the workers did not take “industrial action” on those days, such that there could be no contravention of s 46 of the BCI Act by Mr Desmond, Mr Ingham or the Union. Therefore, I find that the Commissioner has not proved that the respondents contravened s 46 of the BCI Act.
Consideration of alleged contraventions of s 348 of the FW Act
178 Section 348 of the FW Act provides that, “A person must not organise or take…any action against another person with intent to coerce the other person…to engage in industrial activity”.
179 In para 22 of the Statement of Claim, the Commissioner alleges that:
In organising the 17 October Industrial Action, Desmond took action against MPG:
(a) with the intent to negate MPG’s choice as to whether to engage in industrial activity, namely to comply with the Reinstatement Request.
(b) that was unlawful, illegitimate and/or unconscionable.
180 The “17 October Industrial Action” is defined in para 11 to mean:
…“industrial action”…within the meaning of s 7(1)(c) of the BCIIP Act by failing or refusing to:
(a) attend work at the Qube Project; or alternatively
(b) perform any building work at the Qube Project.
181 Similar allegations are made in paras 37 and 41 against each of Mr Desmond and Mr Ingham respectively in respect of the “18 October Industrial Action”, which is also defined by reference to s 7(1)(c) of the BCI Act. A similar allegation is also made in para 53 against Mr Desmond in respect of the “19 October Industrial Action”, which is again defined by reference to s 7(1)(c) of the BCI Act.
182 On the face of the pleading, the allegations of contravention of s 348 rely upon there having been action amounting to “industrial action” within the meaning of s 7(1)(c) of the BCI Act. However, s 348 is not concerned with “industrial action”. Therefore, the Commissioner has chosen to plead a case carrying a higher threshold than necessary.
183 This point was taken by the respondents who submitted in relation to the allegations of contravention of s 348:
These allegations are dependent on the ABCC establishing both that industrial action occurred, and that it was organised. As neither is the case, the allegations fail.
The Commissioner did not respond to that submission.
184 I have found that the Commissioner has not proved there was “industrial action”. Therefore, the allegations of contravention of s 348 of the FW Act as pleaded cannot succeed.
185 I have considered whether I should treat the allegations that Mr Desmond and Mr Ingham organised “industrial action” merely as allegations that they organised “action” for the purposes of s 348 of the FW Act. In the end, I consider that I should not do so because, firstly, the Commissioner has not contended for that position, and, secondly, because the course of the pleadings and submissions has meant that the respondents have not had an opportunity to make submissions against that position, nor any adequate opportunity to make submissions upon the merits of the alleged contraventions of s 348 of the FW Act.
186 In case I am wrong in this conclusion, I will proceed to consider the pleading as if it relies only upon “action”, rather than “industrial action”. I will treat the Commissioner as relying upon the “action” taken by the workers of refusing to perform work on 17, 18 and 19 October 2017.
187 Paragraphs 22, 37, 41 and 53 of the Statement of Claim appear to allege that Mr Desmond and Mr Ingham contravened s 348 of the FW Act by organising the action taken by the workers and, in addition, by taking action against MPG by organising the action. I do not think the second allegation adds anything to the first.
188 I find that on 17, 18 and the morning of 19 October 2017, the workers took “action” within s 348 of the FW Act against MPG by refusing to perform work at the Qube project. I find that Mr Desmond “organised” that action for the reasons I have already given. I find that Mr Ingham did not organise any part of that action, so the allegation against him of contravention of s 348 cannot succeed for that reason.
189 The Commissioner alleges that Mr Desmond organised the action with intent to negate MPG’s choice as to whether to engage in “industrial activity”. The Commissioner alleges that the relevant industrial activity was, within s 347(b)(iv), compliance with a lawful request made by an industrial association. It is not expressly pleaded, but it does not appear to be in dispute, that the Union is an “industrial association” within ss 12 and 347(b)(iv) of the FW Act.
190 Mr Desmond was employed by the Union as an organiser, and his role included providing assistance and advice to Union members. I find that when he organised the action taken by the workers, he was acting within the scope of actual or apparent authority. Mr Desmond informed MPG’s management that the workers wanted Mr Stephen reinstated and that the workers would not leave the smoko shed until that happened. Mr Desmond was communicating a demand that he had encouraged or procured the workers to make. As Mr Desmond was acting within the scope of his actual or apparent authority, under s 793, the Union is also taken to have made that demand.
191 Section 347(b)(iv) of the FW Act provides that, “a person engages in industrial activity if the person…does, or does not…comply with a lawful request, or a requirement of, an industrial association”. The respondents made a formal submission that s 347(b)(iv) only applies to a request or requirement made by an industrial association of another person to participate in the activities of the industrial association, and does not apply more generally to other requests, such as a request to a principal contractor that a delegate be allowed to resume work. The respondents submitted to the extent that first instance authorities have decided or accepted a position to the contrary, they were wrongly decided: see Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union (The Australian Paper Case) [2017] FCA 167 at [193] and the authorities referred to therein. Those authorities were called into question by Bromberg J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) (2018) 260 FCR 564 at [85], but were held not to be plainly wrong.
192 On 10 November 2020, the parties were notified that I would hand down judgement on 12 November 2020. Also on 10 November 2020, the Full Court gave judgment in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192, the appeal against the judgment in The Bay Street Case. In the appeal, Allsop CJ (Flick J concurring) held at [37] that the question posed under s 347(b)(iv) of the FW Act is:
Is the request by or requirement of the industrial association…about activities of or concerning the industrial association in which there is to be a freedom to participate?
193 Accordingly, the Full Court construed s 347(b)(iv) essentially in the way contended for by the respondents in this case.
194 On 11 November 2020, the parties wrote to the Court requesting an opportunity to be heard upon the significance of The Bay Street Appeal. I declined to hear the parties as I had already decided the outcome of the case and their submissions would ultimately make no difference. The succeeding paragraphs were written before delivery of judgment in The Bay Street Appeal and must be read in that light.
195 The Commissioner alleges that Mr Desmond organised the workers’ action with the intent of negating MPG’s choice as to whether to comply with the request to reinstate Mr Stephen.
196 The authorities concerning the phrase “intent to coerce” under the FW Act demonstrate that there are two elements:
(1) The action must have been taken with intention to overbear the will or negate the choice of the other person.
(2) The action must be otherwise unlawful, illegitimate or unconscionable.
(See Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16 at [20]–[23]; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at [38]–[41]; Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 at [105]; Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436 at [12]–[33]; State of Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 at [7], [70]–[72]; Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at [25]; Esso Australia Pty Ltd v The Australian Workers’ Union (2017) 263 CLR 551 at [61]; Australian Building and Construction Commissioner v Molina (2020) 295 IR 414 at [110]).
197 Section 348 is directed to the intent of the person who organises or takes the action. It must be presumed, by the operation of s 361(1) of the FW Act, that Mr Desmond organised the action taken by the workers with intent to coerce MPG into reinstating Mr Stephen. Mr Desmond denies organising the action, and therefore does not expressly address the question of his intent. I have already rejected Mr Desmond’s evidence that he did not organise the action. I find that he has not proved that he did not act with that intent.
198 In any event, the evidence allows me to positively conclude that Mr Desmond organised the workers’ refusal to perform work with the intent to leave MPG with no choice but to comply with the request or demand to reinstate Mr Stephen. In circumstances where the workers decided, having been encouraged by Mr Desmond to do so, that they would refuse to work until Mr Stephen was reinstated, that was the obvious purpose of organising the action.
199 The Commissioner submits that Mr Desmond’s actions were unlawful because they contravened s 46 of the BCI Act. However, as I have rejected that allegation, the allegation of illegality must be rejected.
200 The Commissioner submits that Mr Desmond’s organisation of the action was illegitimate. In Australian Building and Construction Commissioner v Construction, Forestry, Mining, and Energy Union (2017) 267 IR 130, Reeves J held at [152]:
So having regard to all these matters, I consider the disproportionality principle identified in Verve Energy and discussed in Unjust Enrichment provides an answer to the question I have posed above. That is, disproportionality between a lawful threat of action, or the lawful action itself, and the legitimate interest in the demand the threat, or action, supports is the appropriate legal standard to be applied to determine whether the threat of action, or actual action, is illegitimate.
201 In Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441, Jessup J held:
109 Was it illegitimate for Mr Mates to seek to achieve his purpose of having Kane employ a labourer on the site by organising the workers to have themselves relocated elsewhere, thereby bringing about a stoppage of work on the site itself? … It would, I consider, be rather odd for a court to hold that it was perfectly alright for a stranger to the relationship between the subcontractors and Kane to prevail upon the employees of the former to make a request to their employers that they be taken off site. I express these views not to suggest that they reflect anything like the actual situation on the site on 31 July 2006, but rather to establish a base-line of normality, as it were, by reference to which it should then be regarded as lying upon the respondents to establish that the situation on the site was such as to give legitimacy to Mr Mates’ actions.
110 Is implicit in the respondents’ case that the legitimacy of Mr Mates’ actions should be assessed in the context of his concerns about the condition of the site, and of the amenities in particular. However, the question of legitimacy is to be objectively determined. I have held that the situation existing on the site was not such as would have justified a union organiser taking the reasonable view that no work at all should be done, and that the site should effectively be shut down, on health and safety-related grounds. I would hold, therefore, that the concerns which Mr Mates in fact held about those matters were not as such sufficient to legitimise the action which he took.
202 In Esso Australia Pty Ltd v The Australian Workers’ Union (2015) 253 IR 304, Jessup J held:
175 In my view, that application of pressure was illegitimate. In every respect, the bans and stoppages notified on 3 February 2015 involved refusals by the employees concerned to perform some aspects of their required, customary, duties pursuant to their contracts of employment. The obligation to serve lies at the heart of any employment relationship. The conclusion that it is illegitimate for an employee to refuse to serve as a means of extracting beneficial terms from his or her employer is one that will rarely be difficult to draw.
(Upheld in Esso Australia Pty Ltd v The Australian Workers’ Union (2016) 245 FCR 39.)
203 Mr Stephen had been asked by MPG’s management not to attend the site until an investigation had been conducted into the altercation between himself and Mr Kohleis. Mr Stephen was the Union’s site delegate and a HSR on the Safety Committee. Mr Kohleis had not been excluded from the site. It was evidently perceived by Mr Desmond and the workers as unfair that Mr Stephen should be excluded, when Mr Kohleis was not.
204 Whether or not Mr Stephen’s exclusion was unfair, it was a disproportionate reaction for Mr Desmond to organise the workers to refuse to perform any work in order to compel MPG to reinstate Mr Stephen. If there was legitimate cause for complaint, there were other avenues of redress, including an application for urgent relief for a possible contravention of s 340 of the FW Act. I consider that Mr Desmond’s organisation of the workers to refuse to perform work was an illegitimate response to Mr Stephen’s exclusion from the site.
205 It is not relevant, under s 348 of the FW Act, that the workers’ refusal to work may have been ineffective in light of their entitlement not to work because of rain. The language of s 348 is directed to the intent of the person taking or organising the action, not the effect of the action.
206 However, as the Commissioner has relied upon “industrial action” within s 7(1)(c) of the BCI Act, but failed to prove that allegation, the allegations of contravention of s 348 of the FW Act cannot succeed.
207 For the reasons I have given, I find that the Commissioner has not proved that the respondents contravened s 46 of the BCI Act or s 348 of the FW Act.
208 The proceedings must be dismissed.
I certify that the preceding two hundred and eight (208) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. |
Associate:
